Revised (and Clarified) FFCRA Regulations Issued by DOL

As we described in a previous article, on August 3, a federal district court in the Southern District of New York (the Court) vacated a number of provisions of the U.S. Department of Labor’s Final Rule concerning leaves under the Families First Coronavirus Response Act (FFCRA). The Department of Labor (DOL) responded to that decision on September 11, 2020, by issuing revised regulations addressing the provisions vacated by the Court. The revised regulations bring good news for most employers. In large part, the revised regulations do not meaningfully alter the temporary regulations issued by the DOL in early April. The DOL restated and clarified most of the provisions vacated by the Court, with one notable exception important to employers with employees classified as health care providers.

In its revised regulations, which are effective on September 16, 2020, the DOL first restates that an employee is not entitled to leave when there is otherwise no work available for the employee. The Court held that this limitation was not reasoned, particularly given that the DOL only explicitly applied the “no work available” limitation to three of the six bases for leave under the FFCRA. In response, the DOL provided further reasoning for this limitation and amended the language of the regulations to explicitly apply the limitation to all six bases for leave. As part of its additional reasoning, the DOL focused both on the term “leave” and the statutory language stating that leave was needed “because of” or “due to” one of the six permitted bases. The DOL notes that, according to interpretations by the Supreme Court of the United States, the terms “because of” and “due to” mean that the reason is the only (or “but-for”) cause of the need for leave. The DOL further notes that, when there is no work available, the employee does not have anything from which to take “leave,” as that term is commonly understood and used in the Family and Medical Leave Act and other laws requiring leave. Finally, the DOL notes that individuals who are not working because work is not otherwise available—including those who also have circumstances for which leave would be provided if work was available—can find relief in other programs, such as unemployment. 

The DOL next turns to the Court’s decision related to the requirement for an employer to approve intermittent leave under the FFCRA when the leave is to care for a child whose school or place of care is closed or unavailable. When vacating this provision of the regulations, the Court held that this requirement also was not supported by reasoning. The DOL restates this limitation and provides its reasoning in the comments accompanying the revised regulations, noting that the statute does not mention intermittent leave at all. The DOL essentially analogizes intermittent leave under the FFCRA for this purpose to intermittent leave due to the birth or placement of a child under the FMLA because leave to care for a child whose school or place of care is closed or unavailable is not medical leave. The DOL also notes that requiring employer approval is consistent with the requirement in the FMLA that employees schedule leave, when foreseeable, to avoid unduly disrupting the employer’s operations. 

One interesting distinction made by the DOL in the context of intermittent leave relates to hybrid learning. In this context—i.e., when the school is closed (or not available for in-person learning) intermittently— the DOL does not consider the leave to be intermittent. Rather, each closure is a separate reason for which the employee needs leave. Such leaves do not require employer approval according to the comments accompanying the revised regulations.

The DOL also addressed the employee notice requirements under the FFCRA, and the time frame during which employees must provide documentation (which is, for all practical purposes, an employee’s own certification). The DOL clarified that employees need to provide notice (and documentation) when practicable. For foreseeable leaves, it is generally practicable to give notice and provide the documentation before the leave. When the leave is not foreseeable, notice is generally practicable within the same or the next business day. It may not be practical for an employee to provide the documentation at the same time.

Finally, and most significantly for health care employers, the DOL addressed the definition of a health care provider for purposes of a permissible exclusion from leave. The Court vacated the prior definition of a “health care provider” for this purpose because it was too broad, allowing all employees of an entity that is a health care provider to be excluded, including those who are not involved in providing medical care. The DOL issued a more limited definition of a health care provider for the purposes of this permissive exclusion. Under the revised regulations, a “health care provider” for this purpose includes:
 

• Anyone who is a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a certification for purposes of the FMLA.
• Any other person employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care. This category includes, but is not limited to, nurses, nurse assistants, and medical technicians. It also includes employees who directly assist or are supervised by a direct provider of such services. For clarity, the DOL defines “diagnostic services,” as taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, or interpreting test or procedure results.
• Employees otherwise integrated into and necessary to the provision the services listed above. This category includes, for example, a laboratory technician who processes medical test results to aid in the diagnosis and treatment of a health condition. It also includes employees involved in bathing, dressing, hand feeding patients; taking vital signs; setting up medical equipment for procedures; and transporting patients and samples. This list is not all-inclusive—employees performing other duties that are integral to the provision of diagnostic, preventive, treatment and other patient-care services make be excluded from leave.

The DOL states that, as a general rule, that the following employers are not “health care providers” for the purpose of the permissive exclusion from leave: IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. Again, this list is not exhaustive. 

For the health care industry, this revised definition is much more restrictive than the prior definition, which allowed for anyone employed by a health care provider—including those employed by certain suppliers to the health care industry—to be excluded. Health care employers will need to review and revise their policies accordingly, considering carefully which of their employees could be excluded. This revised definition and the accompanying lists do not specifically address, for example, employees who provide cleaning services in patient, emergency or operating rooms. An argument could be made that those employees are integral to the provision of diagnostic and treatment services. In addition, health care providers should consult with counsel to determine how to handle the previous denial of leaves to individuals who are no longer covered by the exclusion.

Other employers should also review their policies and procedures to determine if they remain in compliance with the revised regulations. While leaves under the FFCRA currently expire on December 31, 2020, we are seeing an increased usage of leave due to hybrid and fully-virtual school. It is important that employers administer these leaves carefully to comply with the law and obtain any tax credits available to them for providing paid leave under the FFCRA.

If you have questions related to these revised regulations or any other aspect of the leaves under the FFCRA, please contact Tami A. Earnhart or any other member of our Labor, Employment & Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.